Opinion
No. 33859
Decided June 16, 1954.
Appeal — From Public Utilities Commission to Supreme Court — Promulgation and adoption of rules — No justiciable question before commission — No attempt to enforce rules against appellants — Appeal premature — Dismissal.
APPEAL from the Public Utilities Commission.
At a general session, the Public Utilities Commission on its own motion instituted an investigation as to certain practices relative to the leasing, renting and interchanging of equipment by motor transportation carriers of freight operating under the commission's jurisdiction. All common and contract motor carriers of property subject to the commission's jurisdiction were made pro forma "respondents" in the proceeding. After an extended hearing the commission issued administrative order No. 144, requiring carriers to comply with certain specified rules relative to the leasing, renting and interchange of equipment.
The appellant transportation companies contend that that administrative order is arbitrary, unreasonable, unlawful and erroneous, that certain of the rules therein are violative of the state and federal Constitutions, and that the order should be reversed, vacated and set aside.
Appellants contend, inter alia, that the commission was in error in the adoption of administrative order No. 144, in that it failed to prepare a written opinion setting forth the reasons prompting its rules and a resume of the facts upon which the rules were predicated, as required in all "contested cases" by Section 614-46 a, General Code.
Mr. Taylor C. Burneson, for appellants. Mr. C. William O'Neill, attorney general, Mr. James M. Burtch, Jr., and Mr. Everett H. Krueger, Jr., for appellee.
The commission has authority to adopt rules but the General Assembly has not prescribed a procedure therefor. The Administrative Procedure Act, Section 154-61 et seq., General Code (Section 119.01 et seq., Revised Code), sets up a formal procedure for rule-making, but by Section 154-62, General Code (Section 119.01, Revised Code), the commission is specifically excepted from the provisions of the act.
The commission in the promulgation and adoption of the rules in question was not subject to the procedural requirements of Section 614-46 a, General Code. The proceeding was not an adversary one as contemplated by the term, "contested cases." No justiciable question was before the commission.
As there has been no attempt to enforce the rules against the appellants, they have not been affected by the rules in any way, and the validity of the rules can be determined only when that question arises in connection with a matter that is justiciable. Consequently the appeal is premature.
The appeal is dismissed, sua sponte, on authority of Zangerle, Aud., v. Evatt, Tax Commr., 139 Ohio St. 563, 41 N.E.2d 369.
Appeal dismissed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.